The Government’s Response to Human Trafficking

At a recent exhibition on human trafficking, Immigration Minister Mark Harper stated that ‘[w]e are already making significant progress in the fight against trafficking.’[1] However, a report published recently by the Centre for Social Justice Slavery Working Group highlights the many failings of the government’s current response, both legislatively and procedurally. The report, It Happens Here: Equipping the United Kingdom to Fight Modern Slavery, looks into the government’s current response to the abhorrent crime of human trafficking and lays out a number of recommendations for change.

Human trafficking is by its very nature a hidden and complicated crime. Tackling it will thus not be an easy process and the report points out the need for involvement from the government, NGOs and the private sector. Echoing this sentiment was the President of the UN General Assembly, Nassir Abdulaziz Al-Nasser, on 3 April 2013 who ‘called on Member States, civil society, the private sector and the media to step up efforts to bring an end to human trafficking’.[2]

Modern slavery

Defining human trafficking is somewhat difficult given that different terms are used inconsistently. However, the Serious Organised Crime Agency (SOCA) provides the following working definition:

In the simplest terms, human trafficking is the movement of a person from one place to another into conditions of exploitation, using deception, coercion, the abuse of power or the abuse of someone’s vulnerability… [3]

In a speech in September 2012, President Obama stated that human trafficking ‘must be called by its true name: modern slavery’. [4] Indeed, the report by the Centre for Social Justice (CSJ) includes human trafficking, servitude, slavery and forced labour under the umbrella term ‘modern slavery’.

Human trafficking is by its very nature a hidden and complicated crime.

Statistics on human trafficking are hard to acquire due to the hidden nature of the crime. A Standard Note from March 2013 notes that ‘there are no robust statistics on the number of people – adults or children – trafficked to the UK for the purposes of labour or sexual exploitation’. [5] An Impact Assessment published by the Home Office in 2008 estimated that, at any one time in the UK, there will be around 4,000 victims of trafficking for sexual exploitation. [6] Meanwhile, a Home Affairs Committee report estimated that there are over 5,000 victims of trafficking in the UK. [7]

However, certain charities have argued that these statistics do not come close to the true picture and that the numbers are in fact far higher. The CSJ’s report provides one reason for the discrepancy between the government’s estimates and the reality: ‘our research shows that a large proportion of cases are never recognised or reported, and do not appear in any statistics or measures of the size of the problem.’ [8] Worryingly, recent figures show an increase in cases of potential victims referred under the National Referral Mechanism (NRM). The NRM received 1,186 referrals of potential victims of trafficking in 2012, which represents an increase of 25 per cent on the previous year. [9]

Indeed, this trend is reflected across the EU with the Eurostat report, Trafficking in Human Beings, finding that, across the Member States, between 2008 and 2010 the number of ‘identified and presumed victims increased by 18 per cent’. [10] Shockingly, whilst the number of victims is on the rise, the number of convictions of traffickers has decreased within the same time frame, with the report finding a fall of 13 per cent.

The government’s current approach to human trafficking

At present there are a number of organisations involved in the fight against human trafficking and there are various pieces of legislation which define and govern the legal responses. Although the abundance of relevant agencies and statutes is arguably in line with the need for a combined effort to tackle this complex and difficult issue, it unfortunately leads to further confusion. Furthermore, it means that there is not one key individual or organisation with ownership of the issue. The CSJ’s report states:

Shockingly, whilst the number of victims is on the rise, the number of convictions of traffickers has decreased…

Measures to address modern slavery and human trafficking and provide support for its victims and survivors in the UK are the remit of numerous government departments, local government agencies and a wide range of NGOs from across civil society. Such diverse activity requires independent oversight and coordination for it to be effective. The deep social problem of modern slavery in the UK is characterised by a failure of leadership at the national level, including within the political arena. [11]

Section 71 of the Coroners and Justice Act 2009 provides that an offence is committed if a person holds another in slavery or servitude, or compels them to perform forced or compulsory labour, and the person knows, or ought to know, that the person is being so held or forced to do as such. [12] A Section 71 offence can be carried out by companies as well as individuals.

Section 4 of the Asylum and Immigration Act 2004 governs the offences of trafficking persons into, within and from the UK. To prove that one of these offences has occurred, it must be found that a person has arranged or facilitated the travel or arrival of the ‘passenger’ with the intention of exploitation or belief that the passenger will be exploited. The maximum sentence for an offence under Section 4 is 14 years imprisonment, if convicted on indictment. The maximum sentence if convicted summarily is 12 months imprisonment. [13]

Finally, Sections 57, 58 and 59 of the Sexual Offences Act (SOA) make it an offence for a person to arrange or facilitate the arrival of a person into the UK, within the UK or out of the UK respectively, where there is an intention that a ‘relevant offence’ involving the trafficked person will occur. Section 60 defines a ‘relevant offence’ as any offence described in the SOA. Again, the maximum sentence, on indictment, is 14 years in prison. [14]

However, certain charities have argued that these statistics do not come close to the true picture and that the numbers are in fact far higher.

The National Referral Mechanism (NRM) was set up in 2009 in order to adhere to the Council of Europe Convention on Action against Trafficking in Human Beings. The NRM provides a framework for identifying, reporting and supporting potential victims of human trafficking. One of an established set of organisations known as a ‘first responder’ (such as SOCA, local authorities or the Salvation Army) will make a referral to one of the two ‘competent authorities’ (CAs) if the potential victim gives their consent to this. The two competent authorities are the UK Border Agency (UKBA) and the UK Human Trafficking Centre (UKHTC).

The CA must make a decision as to whether there are reasonable grounds to believe that the individual may be a potential victim of human trafficking. If the decision made is in the affirmative, then the individual is given a period of 45 days where they are able to access support services. The idea is that this is a period of reflection and recovery. During this stage the CA will gather information and investigate the case in order to make a ‘conclusive decision’. The SOCA explains this in the following terms:

The case manager’s threshold for a conclusive decision is that on the balance of probability “it is more likely than not” that the individual is a victim of human trafficking. [15]

If it is decided that the individual does pass the balance of probabilities test, then there are a number of possibilities in terms of further action, some of which will depend on their immigration status. If the victim agrees to co-operate with a police investigation and prosecution, they can be granted discretionary leave to remain in the UK for a period of one year. If the victim declines to co-operate, then the UKBA does have the discretion to allow the individual leave to remain in the UK if the circumstances necessitate this. The victim may decide to voluntarily leave the UK and return to their home country, and the intention is that this will be facilitated and supported by the UKHTC.

Proposals for a new response

At present, the legal and governmental approach frames human trafficking as primarily an issue of immigration:

A serious challenge to identifying victims is the widespread misperception that modern slavery is an issue of immigration. This misdiagnosis is a dangerous mistake. Responsibility for modern slavery is held by the Minister for Immigration. The Inter-Departmental Ministerial Group (IDMG) on Human Trafficking is also chaired by the Minister for Immigration. This is a wrong fit. Modern slavery is not primarily an immigration issue; it is a breach of human rights and the gravest of crimes. [16]

A key recommendation of the report is the creation of a new Act of Parliament: the Modern Slavery Act. The CSJ heard evidence which demonstrated the confusion created by having several relevant statutes and highlighted the damaging impact of the framing of human trafficking as an immigration issue. The Modern Slavery Act would reframe this as primarily a criminal issue to recognise the severity of the offence. The CSJ recommend that the Act should include:

all offences relating to trafficking and slavery, ‘in order to symbolically reflect the criminality of human trafficking for any form of exploitation’ [17]

provisions to ensure that the victims of trafficking offences will not be prosecuted for crimes which ‘they may have committed as a direct consequence of their trafficking situation’ [18]

provisions regarding the identification and investigation of victims.

The Act would also outline the role and function of an Anti-Slavery Commissioner, and would provide a statutory duty for the Commissioner to promote the interests and views of victims. The report looks to the Children’s Commissioner as a blueprint for the Anti-Slavery Commissioner and believes that this individual could act as a voice for the victims of trafficking in a similar way to the Children’s Commissioner which speaks out for children. The CSJ note that an Anti-Slavery Commissioner ‘would offer consistency in the UK’s approach, which currently fluctuates and stalls with changes in government and officials.’[19]

Thus the CSJ has recommended that human trafficking be prioritised and that training be implemented accordingly.

The creation and appointment of an Anti-Slavery Commissioner is, the report argues, crucial in not only ensuring that an impartial (i.e. not politically-affiliated) individual would be able to drive strategic improvements, but the post would also provide a communication point for equivalent parties from other countries. The CSJ heard evidence to suggest that similar parties in other countries struggle to communicate with the UK’s system, but cross-border communication is vital if we are to successfully tackle the abhorrent crime of human trafficking.

The need for cross-border communication for the police was also noted by the report. The CSJ duly noted the difficulties posed by the international element in many human trafficking cases for police forces when conducting investigations. In response to this they made several well-thought-out suggestions to assist in international investigations, such as making use of Joint Intelligence Teams (facilitated by Europol and Eurojust) which ‘were introduced to allow police forces from different countries to cooperate for a fixed period of time on a specific case.’ [20]

The CSJ also noted the lack of incentives for police forces to spend time and resources on human trafficking cases as a serious barrier to an effective response. One anonymous former law enforcement officer who gave evidence to the Working Group pointed out that:

Human trafficking is not a performance indicator for police. Until it is, there is more incentive to investigate a shed burglar – which is a performance indicator in some cases – than there is a human trafficker. [21]

Thus the CSJ has recommended that human trafficking be prioritised and that training be implemented accordingly. Indeed, it is vital that police be properly equipped to deal with human trafficking, despite the lack of public pressure and despite the difficulties raised by the hidden and international element to the crimes:

Modern slavery must feature much more prominently on national and local police agendas, despite an apparent lack of engagement and pressure from the public… Every force should be able to respond to this crime. Just as police forces a decade ago began to more proactively deal with domestic violence, so they must now lead the fight against a crime equally hidden. [22]

The report also highlights the need for involvement from the business community in the fight against human trafficking. In particular, the report recommends that the government enact the Transparency in UK Company Supply Chains (Eradication of Slavery) Bill which would place obligations on companies with turnovers of over £100m to disclose the efforts they are making to identify and remove trafficking from their supply chains. Whilst noting the positive action which has been taken by certain groups of businesses and certain individuals, the CSJ points out that:

It is crucial that the government…take responsibility in attempting to tackle the heinous but hidden crimes of human trafficking.

There is a pressing and immediate need for a more effective framework to tackle modern slavery through the private sector, which provides a safe forum within which industry can begin to address the integrity of its supply chains without the fear of public, media or NGO censure. [23]

Conclusion

The depth of the research done by the Centre for Social Justice Slavery Working Group in producing so many comprehensive and pragmatic recommendations is testimony to the effort and importance placed on the issue of human trafficking by all those involved in producing the report. Indeed, overall the 224 page report is clear and well-researched. The task of compiling such a report is not an easy one and it is vital that the government take into account its findings and recommendations.

It is crucial that the government, the police, and the business community all take responsibility in attempting to tackle the heinous but hidden crimes of human trafficking. The creation of an Anti-Slavery Commissioner and a Modern Slavery Act will rightly reframe the issue as primarily a criminal offence rather than an immigration issue and hopefully pave the way for a more co-ordinated and bold response to combat modern slavery.

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